Rose v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-06-07

Background

The Applicant, Kyle Rose, was first issued with a firearms licence in 2009. He renewed his licence in 2014. However, on 18 January 2019 his licence was suspended, when the Firearms Registry was contacted by the Applicant's General Practitioner, Dr Albert Law with concerns as to the Applicant's mental health. The Applicant's licence was due to expire on 14 August 2019, so, on 31 July 2019, the Applicant applied for a Category AB firearms licence, but his application was refused. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

Relevant legislation

The underlying principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act, relevantly: 1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms
Section 11(7) of the Act provides the Respondent, and hence the Tribunal on review, may refuse to issue a licence if it is considered that issue of the licence would be contrary to the public interest.
Section 79 of the Act is to the effect that a health professional who is of the opinion that a patient may pose a threat to public safety (or a threat to the person's own safety) if in possession of a firearm, the health professional may inform the Commissioner of that opinion.

Tribunal's approach

Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34]. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357; the Tribunal considers the matter afresh. Under s 28(2) of Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Evidence

In his application for review the Applicant wrote: My application with the firearms registry was unsuccessful as their perception was that I might relapse with my mental health. I have a report from my psychologist (a trained professional in the field of mental health) who has stated that I am "not" a danger to myself or the public. I personally will never put my family through that torment again. There are no public interest concerns in the applicant holding a Firearms Licence. I would like to add that I currently hold an unrestricted NSW Explosives licence and security clearance which enables me to purchase/store/ transport/manufacture and use explosives. I have some stored at home at the moment actually. This licence has never been rescinded during my once off breakdown which is why my psychologist and myself can't see any reason why my firearms licence shouldn't be returned. I have had the explosives licence for 6 years.
The Applicant provided a number of character references: John Cassidy dated 13 April 2021, Mathew Hodge dated 28 March 2020, Sharon Tibbs dated 23 March 2021, Todd Matthews dated 8 April 2021 and Lachlan Baker dated 28 March 2021.

Evidence of Dr Albert Law

On 18 January 2019, Dr Law, the Applicant's treating General Practitioner, completed a disclosure form under s 79 of the Act and provided a copy to the Respondent. There he wrote, in describing the circumstances that led him to believe that the Applicant may pose a threat if in possession of a firearm/prohibited weapon, "work related injury, chronic spinal pain, depression with suicidal ideation."
The Respondent sought a written report from Dr Law, in relation to the Applicant's current mental state. Dr Law provided a report dated 7 May 2021. The Applicant was invited to comment on Dr Law's report but did not do so.
Dr Law wrote that the Applicant had been his patient since December 2017, and referred to his clinical notes which were attached.
Dr Law was asked by the Respondent to elaborate upon what had precipitated his contact with Police on 18 January 2019. By way of background, the doctor wrote that in June 2018 the Applicant had attended Dr Law's rooms where he saw a locum. He presented with chronic back pain associated with a workplace injury in August 2017. The Applicant was diagnosed with depression and was referred to a psychologist. He was reported as has having fluctuating mood and intermittent thoughts of suicidal ideation, in particular, shooting himself. He told the doctor he had given the key (to his gun safe) to his wife and did not know its location. He denied having active thoughts of self-harm at that time, although he described his depression as being worse recently.
When he attended again, on 3 July 2018 he denied thoughts of self-harm. On 1 August 2018 though, he expressed negativity and a sense of hopelessness and helplessness. He had found the psychological counselling unhelpful.
By 4 January 2019 he reported experiencing poor short term memory and had had a syncope episode. On 9 January 2019 the doctor received a call from the Applicant's employer's insurer's case manager informing him that the Applicant had expressed suicidal ideation. It is unclear if it was Dr Law or the case manager that was then trying to arrange an urgent appointment with the Applicant's psychiatrist and an EEG. It is also unclear if the Applicant was under the care of a psychiatrist at that time.
In his notes for 18 January 2019 the doctor recorded that he had been contacted by the case manager who had concerns about the Applicant's suicidal ideation. It was noted that the Applicant had intended to run his car into a tree on Christmas Eve, and that he has access to a gun at home. The case manager reportedly had tried to contact both the Applicant and his wife, without success. When contact was made, the Applicant denied current suicidal ideation, and noted that he has made alternative childcare arrangements for his daughter since he is still having syncope episodes.
On 14 February 2019 the Applicant again attended Dr Law. The EEG results were not yet available, and there was a possibility of pseudoseizure. The Applicant's relationship with his wife was said to be strained because of his anger outburst. He continued to suffer pseudoseizures. He was said to suffer "agitated depression and chronic insomnia". In April 2109 it was recorded that although the EEG had shown a normal result, neuropsychology review or in-patient care was suggested.
As to further expression of suicidal ideation, the doctor referred to his notes of 5 June 2019. While the notes refer to the Applicant having attended a pain clinic without apparent satisfaction, he was recorded as continuing to have pseudoseizures, albeit less frequently. There was no specific reference to suicidal ideation.

Evidence of Ms Vernon, psychologist

The Applicant was asked by the Firearms Registry to supply a Psychologist's Report and on 27 September 2019, the Applicant obtained a report from Heather Vernon, Psychologist. The Applicant also provided further correspondence from Ms Vernon, dated 23 March 2021, which indicates the Applicant was her patient from March 2019 to February 2020, having fortnightly sessions. He was again referred from July 2020 for "ongoing regular sessions" which occurred until approximately February 2021. It is unclear if the Applicant remains under her care, or is otherwise receiving counselling.
Ms Vernon wrote that as at the date of her report, the Applicant had been her patient for a period of 6 months - March to September 2019. She wrote that following his workplace injury on 10 August 2017 the Applicant had been diagnosed with Adjustment Disorder with Mixed Anxiety and Depression. It was for that reason that the Applicant had been referred to her. She wrote that his main impairment was his excessive level of chronic pain.
She wrote that the Applicant reported to her that, other than during extreme flare-ups (where he is house-bound), his hobby of recreational shooting provides some exercise and "as well as the mental lift of being able to engage in an activities he once did pre-injury".
She wrote of the Applicant's range of medication for his injury, some of which may cause drowsiness, but, she wrote, the Applicant takes them at night to assist with pain and induce sleep. If the Applicant were to operate a machine or use a firearm he would not take the medication.
Ms Vernon wrote of an incident in December 2018, in which the Applicant experienced an inability to sleep, sometimes for days at a time, and this led to a "build up". The Applicant was experiencing several fits a day, some of which lasted several hours, after which the pain was "brutal". After one such episode, the Applicant became angry and frustrated and drove away in his car with the intention of committing suicide by hitting a tree. The Applicant told her that as he was approaching a tree at speed, a mob of kangaroos jumped out and he swerved automatically to miss them and therefore did not hit the tree. The Applicant felt the kangaroos "were Heaven sent... [and he] immediately realised there was a higher power".
Several weeks later the Applicant told his Workcover case manager about the experience. The Applicant told Ms Vernon that he had assured his case manager that he was OK and would not attempt self-harm again, but the case manager "seemed to think it was worse than he was saying" and she (the case manager), notified the Applicant's General Practitioner, Dr Law and informed him that the Applicant was "severely suicidal and in need a welfare check". Dr Law notified Police. The Applicant told Ms Vernon that Dr Law contacted him and ascertained that he was "OK", as did Police when they attended.
Ms Vernon considered that the circumstances at that time (extreme pain, sleep deprivation, no sense of a future and inadequate supports) were vastly different to the Applicant's current situation and, as at the date of the Report, she did not consider the Applicant to be suicidal; the Applicant's mental health and pain management have vastly shifted in a positive direction since December 2018.
Ms Vernon considered that the Applicant has the potential to become suicidal if a cluster of circumstances again developed like before, however the Applicant's psychological status has "remained healthier" as time goes on and his pain management regime has improved.
Ms Vernon reported that if the Applicant's licence were reinstated, he intends to acquire another safe for which his wife will hold the key so he does not have access to the key should he experience an "impulsive act" again.

Consideration

The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
I accept that the Applicant has an interest in firearms and has done so since he was aged 14, and that it is one of his favourite hobbies. I also accept the evidence of Ms Vernon that shooting gives him a "mental lift" because it is an activity he could do before he was injured at work.
Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".
Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was also a case on the "fit and proper person" test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66]. "Risk to the public" includes, of course, risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74].
The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum: see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) at [7].
Further, the Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. When considering future risk, the Tribunal must consider the past conduct of the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
As early as June 2018 the Applicant told Dr Law's locum that he had intermittent thoughts of suicidal ideation, in particular, shooting himself. He told the doctor he had given the key to his gun safe to his wife and did not know its location. It is clear the Applicant had sufficient insight into his condition to take this precaution. (I note in passing that there is no evidence that the Applicant's wife is licenced to have access to firearms.)
There was evidence that the Applicant, at about Christmas in 2018 had intended to engage in self-harm by running into a tree. It was fortuitous that he was prevented from doing, by what he apparently attributed to divine intervention.
Ms Vernon wrote in relation to the incident in December 2018, the Applicant had experienced an inability to sleep, sometimes for days at a time, which led to a "build up" and he was also experiencing several fits a day. In April 2019 neuropsychology review or in-patient care was suggested, but there was no evidence that this occurred or that his syncope episodes have resolved.
It was after one such episode, the Applicant drove his car with the intention of committing suicide. Ms Vernon considered that the circumstances at that time were vastly different to the Applicant's situation at the time of her report and she did not consider the Applicant to be suicidal; and that the Applicant's mental health and pain management had vastly improved since that time. Having said that though, notwithstanding his improvement, Ms Vernon considered that the Applicant has the potential to again become suicidal if a cluster of circumstances developed as before. Consistent with that view, she noted that if the Applicant's licence were reinstated, he had told her his wife would again hold the key so that he could not have access to the key should he experience an "impulsive act" again. Clearly the Applicant, in taking this precaution recognises a risk that he may relapse into suicidal ideation.
Ms Vernon wrote that the Applicant is currently prescribed a range of medication for his injury, some of which may cause drowsiness, and which he takes at night. Her observation was that the Applicant should not use a firearm if taking that medication. There was no evidence that the Applicant is no longer prescribed this medication.
Ms Vernon reported that the Applicant had been her patient until February 2021. The information from Ms Vernon, however, does not provide evidence as to the Applicant's current mental health and there is no evidence that the Applicant continues to receive treatment from her or any other mental health professional.
In AML at [23], the Tribunal held that while both effective treatment and a lengthy period of stability are relevant to assess the public interest, they are not mandatory considerations. See also Allan v Commissioner of Police [2008] NSWADT 230 at [33] - [34].
While the character references provided by the Applicant speak positively of the Applicant's character generally, they do not refer to the Applicant's mental health or previous threat if self-harm. Consequently, they must be approached with caution and I afford them minimal weight: Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40].

Conclusion

The Applicant placed significant reliance on the evidence of Ms Vernon. However, her evidence was not free from reservation about the Applicant's risk of self-harm.
In summary, the medical evidence does not satisfy that there is virtually no risk if the Applicant has a firearms licence. While the evidence shows an improvement, there remains a not insignificant risk of relapse: see Moroney v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 138. In coming to this view, I note that the Applicant is not precluded for applying for a licence again, when a clearer picture of his long-term mental stability is to hand.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2021

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